Newton v. Diamond
388 F.3d 1189 (2004)
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Rule of Law:
The unauthorized copying of a quantitatively and qualitatively insignificant portion of a copyrighted musical composition is a de minimis use and does not constitute actionable copyright infringement.
Facts:
- In 1978, accomplished jazz flutist James W. Newton composed a song titled 'Choir'.
- The composition included a segment consisting of three notes, C-D flat-C, sung over a background C note played on the flute, with specific performance instructions in the score.
- In 1981, Newton performed and recorded 'Choir', licensing all rights to the sound recording to ECM Records, but retaining all copyright ownership in the underlying composition.
- In 1992, the musical group Beastie Boys obtained a license from ECM Records to use a portion of the 'Choir' sound recording in their song 'Pass the Mic'.
- Beastie Boys did not obtain a license from Newton to use the underlying composition of 'Choir'.
- Beastie Boys digitally sampled the opening six seconds of Newton's sound recording, which contained the three-note segment, and looped it over forty times throughout their song 'Pass the Mic'.
Procedural Posture:
- James W. Newton filed a lawsuit against the members of Beastie Boys and their associates in the U.S. District Court for the Central District of California, alleging copyright infringement and Lanham Act violations.
- The district court dismissed Newton's Lanham Act claims.
- The district court then granted summary judgment in favor of Beastie Boys on the copyright infringement claims.
- Newton, as the appellant, appealed the district court's grant of summary judgment to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a musical group's digital sampling of a six-second, three-note segment of a copyrighted musical composition constitute actionable copyright infringement of that composition, when the group had a license for the sound recording but not for the underlying composition?
Opinions:
Majority - Schroeder, C.J.
No. The Beastie Boys' use of the sampled portion of the 'Choir' composition was de minimis and therefore not actionable as copyright infringement. The court's inquiry must filter out the licensed elements of the sound recording—including Newton's unique performance techniques—and analyze only the unlicensed underlying composition. The court then assesses the substantiality of the copying by considering the qualitative and quantitative significance of the copied portion in relation to the plaintiff's work as a whole. Here, the three-note sequence is quantitatively insignificant, lasting only six seconds in a multi-minute piece. Qualitatively, Newton failed to provide evidence that this segment was a significant or distinct part of the composition as a whole. An average audience would not discern Newton's hand as a composer from the sample, making the use too trivial to be legally actionable.
Dissenting - Graber, J.
Yes, a reasonable fact-finder could conclude that the use was not de minimis, making summary judgment inappropriate. The majority usurps the jury's function by weighing expert testimony and failing to view the evidence in the light most favorable to Newton. Newton's experts provided testimony that the composition itself—not just the performance—was unique and distinctive, creating a genuine issue of material fact as to its qualitative significance. Even a short sequence of notes can be highly recognizable, like the opening of Beethoven's Fifth Symphony, and a jury should be the one to decide if this sampled segment is qualitatively significant enough to be more than a de minimis use.
Analysis:
This decision solidifies the application of the de minimis defense in the context of digital music sampling, crucially distinguishing between the copyright in a sound recording and the copyright in its underlying composition. It establishes that even literal, identical copying of a musical passage may not be infringing if the copied portion is quantitatively and qualitatively insignificant relative to the original work as a whole. The ruling provides some protection for artists who sample very short or common musical phrases, but it also creates uncertainty by relying on a fact-intensive, case-by-case analysis of 'significance' rather than a bright-line rule.
